Monthly Archives: June 2015

Acting contrary to the rule of law may come naturally to the layman in an adverse situation but society has much to worry if the courts adopt that same approach and quote ends to justify means.

In its latest judgement in the Sahara saga, the Supreme Court has dedicated a full paragraph to justify the detention of three individuals for more than 15 months, without support from a single known provision of law. By stating that the detention is a “step taken in good faith” the court has underlined that India’s legal system is riding a tiger here, and that the arrest and continued detention is weighing on the apex court’s conscience.

A human being’s respect for the rule of law is always tested the most when circumstances are most provocative. When you restrain yourself from hitting an adversary physically no matter how badly you may curse him in your mind and wish him dead, you demonstrate respect for the rule of law. You show greater respect for law than for a loved one when you turn her over to the law enforcement agencies when she has violated the law.

Therefore, it is adversity that tests how truly you believe in the rule of law. Besides, the rule of law is primarily tested only when someone is in trouble with the law. If you have not had any problem with the law, you would not approach a court asking to be treated in a legal manner.

Sahara is provocativeness personified. Therefore, how Sahara is treated in our legal system will demonstrate how adherent we are to the rule of law. Sahara claims to have raised monies in cash from millions of small-time investors. The investors cannot be easily traced. This raises serious suspicion of money laundering. India has a law governing money laundering. That law actually enables attachment of assets and bank accounts, and even imprisonment for violators.

Inexplicably, the anti-money-laundering law is not even being used in the case although the highest court of the land is reviewing the facts. Instead, the capital markets regulator, charged with protecting investors (if only they existed) has found fault with Sahara for not complying with law governing raising money from the public. Sahara was asked to refund the monies to the public.

Sahara claims to have already refunded a large sum in much the same way that it claimed to have raised the funds – in cash. Truckloads of paperwork said to support this claim are not even being opened to see if it is a sham – potentially because the outcome would obviously expose the width of laundering of money made in the country’s vast corruption network. The Supreme Court has not gone into whether the investors exist. Instead, it has ruled that Sahara should repay them. Interest is getting added annually at 15 per cent. Three Sahara officials were sent to jail in a coercive step. The court set coercive bail terms, linking the potential release from jail, to repayments to investors.

The court’s own words are enough to underline how badly the populist arrest tarnishes India’s rule-of-law credentials. “This Court feels concerned with the fact that three persons are deprived of their liberty for the last fifteen months and this situation is quite onerous to them…an unprecedented situation of personal liberty…visa-vis majesty of law…It is this legal realism which has compelled the Court to adopt an approach which sounds more pragmatic. It is ‘doing what comes naturally’ approach to the problem at hand.”

What comes naturally? Faced with grave and sudden provocation, the desire to kill comes naturally. It is said temptation comes naturally to even a saint who sees an open door. Acute hunger makes stealing bread come naturally.

The judgement goes on to say: “This case is a burning example where the true dictate of justice is difficult to discern, and the law needed to come down on the side of practical convenience.” Even more chilling is its articulated view: “The process of reaching a right answer in hard cases obviously differs from the process of reaching the legal answer in easy cases.” Chilling, since this is not a layman talking but the apex court saying that the right answer is not necessarily a legal answer if the case is “not easy”.

Chilling, considering that one layman steadfastly refused to let ends justify means in his moral compass, and went on to be celebrated as father of this nation.

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror around June 26, 2015)